Judicial review helps or hinders good governance?

Henry Litton, a former Judge of the Court of Final Appeal, speaks at the University of Hong Kong's Faculty of Law on November 20, 2017. Photo: Alvin Lum

The Judge Over Your Shoulder

A manual published by the Department of Justice entitled "The Judge Over Your Shoulder: A Guide to Judicial Review for Administrators" says this: "It would not be right to consider judicial review a hindrance to good government. On the contrary, when the legal process is used responsibly and appropriately, it is conducive to raising and maintaining standards of government action, improving governance and decision-making, and upholding the rule of law".

The "legal process" referred to in the manual refers to a disciplined process. It is laid down by statue: s.21K of the High Court Ordinance and Order 53 of the Rules of the High Court. The Rules ensure that the process is clear-cut and speedy, so that both the administrator and the citizen know where they stand. In the recent past there have been many instances where the process has not been used responsibly and appropriately. Lawyers have become bolder in their extravagance as discipline in the courts declined. The failure of Judges to stand firm, impose discipline and apply strictly the law has grievously impaired the rule of law.

A Disciplined Process

Order 53 r.3 mandates an application for leave to be ex parte. This means that the Judge who receives the papers- Form 86- has the responsibility of determining, on his own, whether the applicant's ground of application are arguable. The proposed respondent to the application is not to be viewed with any process unless the Judge considers the matter to be arguable, and gives leave for proceedings to begin.

Judicial review is concerned with decisions and actions by public authorities which have substantial legal consequences. It is not a portal for courts to examine government processes generally or to engage in unfocussed discussion of government policies and actions, as if the court were a coffee shop.

Kwok Cheuk Kin's Application

Take the proceedings launched by Kwok Cheuk Kin in April 2015 [HCAL 103/2014] where the first putative respondent was the Chief Executive and the second putative respondent was "The Government of the HKSAR".

The "Government of the HKSAR" as a proposed party: what does this mean? Who were the decision-makers targeted by the application? Every principal Secretary, assistant Secretary, Department Head? One can immediately see that the application was absurd; it is troubling that a self-respecting lawyer should have put his name to such rubbish and the Legal Aid fund should have been used for such purpose.

The focus of Kwok Cheuk Kin's application was a report submitted by the Chief Executive to the Central Government dealing with the issues arising from the expiration of the term of office of Legislative Council members in 2016 and of the Chief Executive in 2017. The report was just that, a report. It affected nobody's rights as such.

One look at the papers should have convinced the Judge that the application was frivolous and vexatious. It should have been dismissed ex parte out of hand. Instead the Judge adopted a process called a "roll-up" hearing. Senior and junior counsel representing both sides attending on the Judge in court in April 2015, funded by Legal Aid. The submissions made by counsel for the applicant simply confirmed the view that the application was nonsensical. The judge solemnly gave, two months later, what he called a "Judgement", dismissing the application. It took him 15 pages to do so.

From para. 29 of the judgement it appears that the senior counsel had sought from the judge "general guidance" on the way public consultations should be conducted. It shows how far proper discipline has been leached out of the system. What possible guidance can judges give to the executive arm of government as to how the public should be consulted? What has this got to do with the remedy of certiorari (a quashing order) sought by the applicant? Why should the judge pay heed to such nonsense and solemnly set it all out in his judgement? This is ritualistic justice, shadow play, not disciplined justice.

Leung Lai Kwok Yvonne's Application

Take another case - Leung Lai Kwok Yvonne's application- started in May 2015. The putative respondents were the three principal Secretaries who, the year before, had undertaken the job of consulting the public concerning further development of representative government in Hong Kong. The reason for application was (1) a consultation paper published by the three Secretaries in January 2015 and (2) a report and proposals published in April 2015. How could these two acts of government have become the subject of judicial review? This was grand-standing, an abuse of process. Instead of summarily dismissing the application, the Judge, once again, conducted a "rolled up" hearing, attended by teams of lawyers from both sides, and delivered eventually a long judgment (over 60 paragraphs) dismissing the application for leave. There was nothing remotely arguable.

This was misapplied time and energy by the Judge. It gave oxygen to frivolous applications. Had the court acted in a disciplined way, that would have freed up much time for more serious business, and sent a signal to the legal profession that such abuse of process would not be countenanced. This could have been followed up with a Wasted Costs order against the legal representatives should such offence be repeated.

Rolled Up Hearings

The "rolled-up" hearing, originating from England, has its place in the process, but not where it is blindingly obvious that the applicant has no arguable case. It can be used, for instance, where large infrastructure projects are involved and the application for leave- Form 86- discloses on its face mixed grounds for relief: some arguable, some not. Where the judge, dealing with the ex parte application, considered it likely that, on further review, some form of relief would be granted, it makes sense to call on the proposed respondent to attend, so that the application for leave becomes, in effect, an inter partes hearing. This saves much time. Efficiency is achieved.

A rolled up hearing is not a formula for the Judge to shrug off his personal responsibility at the ex parte stage, when it should have been clear that the applicant has no possible case.

Discretionary Remedy

A feature which distinguishes judicial review from ordinary litigation is this: even though grounds for relief are established, no party has right to a quashing order, a mandatory order, or anything else. Remedy is discretionary. As Hobhouse LJ said in Credit Suisse v Allerdale Borough Council [1997] QB 306 at 355: "The discretion of the court in deciding whether to grant any remedy is a wide one. it can take into account many considerations, including the needs of good administration, delay, the effect on third parties, the utility of granting the relevant remedy. The discretion can be exercised so as partially to uphold and partially quash the relevant administrative decision or act".

This followed the statement of principle made earlier by Donaldson M.R. in R v Panel on Takeover, ex parte Detain [1987] 1 QB 815 where he said: "I think it is important that all who are concerned should have well in mind a very special feature of public law decisions, namely that however wrong they may be, however lacking in jurisdiction they may be, they subsist and remain fully effective unless and until they are set aside by a court of competent jurisdiction. Furthermore, the court has an ultimate discretion whether to set them aside and may refuse to do so in the public interest, notwithstanding that it holds and declares the decision to have been made ultra vires".

Chu Yee Wah v Director of Environment Protection

This is what makes the Hong Kong-Macau-Zhuhai Bridge case, Chu Yee Wah v Director of Environmental Protection, so shocking. The application for judicial review was brought in 2010 by Madam Chu who lived in Tung Chung, funded by Legal Aid. If her concern had been about the environmental impact of the construction stage of the three massive projects with formed the Hong Kong segment of the bridge, about to be undertaken, that would have been understandable: it would undoubtedly have involved dust, noise, fumes from heavy machinery, movement of construction traffic, stripping of vegetation and so on. And if the environmental impact of these matters had not been properly assessed by the Director, there were practical steps that could have been taken to make things better; the court's intervention might have been justified.

But the case was not about the construction phase of the project at all. It was about air quality around Tung Chung after the bridge came into use, and for this purpose the year chosen for assessment was 2031. How could anyone have predicted what that might be, so far into the future? Who could say what sort of vehicles might be using the bridge by 2031? Must they necessarily be powered by diesel engines? And what about air-borne pollutants blown across from the Pearl River Delta? And the land on the atmosphere caused by activities on the hong Kong side? How could a court form a sensible judgement based on such nebulous matters?

And what about "the effect on third parties", using Hobhouse LJ's words in the Credit Suisse case? By the time Fok JA dealt with the case in April 2011 construction of the bridge had already started on the Mainland side.

What if the director had simply been unable to satisfy the court not the issue raised by counsel? The bridge would have ended somewhere in the middle of the Pearl River Delta. A bridge to nowhere. Was the Judge prepared to face that consequence? And what was the cost to the taxpayers by his stop-work order? And the knock-on effect on works already started across the border? None of these matters- of practical importance - was ever considered. If there ever was a case which justified the refusal or remedy, as a matter of discretion, in the public interest, it would have been this one. But the question of discretion never came into the picture at all, either at first instance, or on appeal.

The proponent - the Airport Authority - wanted to build storage facilities for aviation fuel in Tuen Mun. These were urgently needed. But the site chosen was next to Shiu Wing's still mill, where blast furnaces generated temperatures of over 1500 degrees centigrade. The danger of spillage of aviation fuel was recognized. There was potential hazard to life and property.

The environmental impact assessment report failed to address that issue properly. It recognised the possibility of some event causing 10% loss of content of a storage tank. But what if the loss was 50%, 100%? As to this, the impact assessment report was silent, yet the Director gave the go-ahead for the scheme. Shiu Wing sought a quashing order.

Counsel for the Airport Authority submitted that the public would be greatly prejudiced, and it would be detrimental to good administration, if the Director's decision was quashed. The facility was urgently needed; a quashing order would mean a fresh Qualitative Risk Assessment report, and the process of consultations would go back to "square one", involving not only public consultation but further scrutiny by the Advisory Council on the Environment. This would cause huge delay.

These were strong arguments for refusing relief, even if the case for a quashing order was made out. But the Court took a robust view. It concluded that there was only one remaining issue; all other hazardous scenarios having already been addressed. The quashing order was made.

The Court's intervention caused the Airport Authority to make changes to the area near the fuel storage site and improved the means of containing spillage. It erected additional safety walls. The fuel farm is now in full operation, with enhanced protective measures in place. The Court's intervention achieved practical results.

This case concerned another big infrastructure project: the reclamation and associated works undertaken in Central, to link the western parts of Hong Kong Island with the Wanchai works then to be undertaken, to form an east-west corridor, by-passing the central business district. These works had been designated in the OZP prepared by the Town Planning Board for the Central District.

There was a fundamental flaw in the Central District OZP. It was common ground that the plan had been prepared by the Town Planning Board on the basis of a misinterpretation of the Protection of the Harbour Ordinance, the Board having applied too low a standard in deciding how far the constraints on the reclamation imposed by that Ordinance affected the works concerned. This became revealed following a judgement of Chu J handed down in July 2003.

As a result of this, the Chief Executive in Council examined the matter afresh and, applying a more rigorous standard, concluded that the reclamation and associated works nevertheless met the requirements of the ordinance. He accordingly decided not to revoke the plan nor to remit the matter back to the Town Planning Board for review. This decision, made in December 2003, became the focus of the application for judicial review. The applicant sought (a) an order to quash this decision, (b) a declaration that the OZP should be reviewed by the Town Planning Board and (c) an order suspending all works pending the Town Planning Board's review.

Hartmann J, in a well-formulated judgement, concluded that the Chief Executive was acting intra vires and hence refused relief. He did not therefore need to consider the exercise of discretion. Were it otherwise, the question of the exercise of discretion would have been highly important, for much was at stake. Contracts for the works had been long let, material procured and work had been going on for some time. Moreover, any stoppage of work should have had a knock-on effect not the works to be undertaken in Wanchai. Were the court to order a stay, the consequences would have been massive.

Amending the Application for Judicial Review: Form 86A

Take this scenario. You are a peasant. You come to the castle gate with a basket of apples and oranges you wish to sell. The gate-keeper looks at the contents of your basket and says: "If that's all you're selling, you may go through". You enter the castle courtyard and spread out your wares, then out of your pockets you take out bundles of knives you offer to sell as well. Could you complain if you got kicked out?

Transfer the scene to the process for judicial review. You fill out Form 86, identifying the offending party and the relief you seek against the party. You set out the grounds for relief. And because you are applying ex parte, behind the other party's back, you have a duty of full and frank disclosure. The judge relies upon all this to give you leave to apply for judicial review. Should you be allowed to amend after you have been given leave- having, as it were, squeezed past the gate-keeper - and put forward a different case?

Take the case of E.Bon Building Materials v The hong Kong Housing Authority [HCAL21/2003, 15/10/2004] where the applicant was a supplier of building material for projects undertaken by the Housing Authority. The Authority decided to remove the applicant from the list of approved suppliers. The applicant "challenged" this decision- this was the term used by the Judge- and, in its Form 86, alleged that the Authority (1) had acted in "bad faith", (2) that its decision was "irrational" and (3) that it was made "in an unfair manner". Leave was given on this basis.

The originating process - Form 86A - sets out the same material as in the application form. It was served on the Housing Authority and, many months later, it was put before the Judge in court, at an inter partes hearing, attended by leading and junior counsel on both sides. At the beginning of the hearing, counsel for the applicant asked to amend Form 86A. Bad faith was no longer alleged against the Authority, nor was it alleged that its decision was irrational. Although the term used was "amend", what counsel was doing, in effect, was to withdraw the case against the Housing Authority. The allegation of procedural unfairness was left standing in Form 86A, but it was not the focus of the case. The real case, said counsel, was that there was bad faith on the part of the Housing Department personnel who had prepared the documentation which was eventually placed before the Authority, and the Authority took such tainted material into account in making its decision.

I ask you: in a disciplined process, what should the judge do? The Housing Department personnel, now said to have acted in bad faith and irrationally, were not in court. The case against the Authority was, in effect, withdrawn, leaving only the allegation of procedural unfairness on paper. Should the Judge not have said to the applicant's counsel: "Are you proceeding with that last allegation? No? Well then the application is dismissed and I will now hear counsel on the question of costs". This would not have lasted more than a half hour.

Instead, we have a 19-page judgment - after a 3-day hearing - the concluding paragraph of which says: "I find that the alleged procedural unfairness is irrelevant to the challenged decision." The judgement itself, inevitably is rambling and muddled, because it has no real focus. We are told (para.5) that the :"amended Form 86A is a relatively lengthy document consisting of some 27 pages". The case against the Authority had proceeded in court- lasting three days- on allegations of bad faith against a third party not in court. How could the judgement not be ramping and muddled?

Under a paragraph headed "Other Matters" the Judge said this: "to avoid any doubt, although it has not been expressly set out [in the judgement], I have considered……the various authorities (which include authorities from jurisdictions such as India, Australia and Canada) which counsel industriously located". What precisely was the Judge trying to say here? That he owed some obligation to counsel to acknowledge what plainly was irrelevant to the case? To avoid "doubt", he said. Doubt as to what? That he had not been sufficiently "industrious" himself? No Judge needs to make such apologies if he had been truly focused on the real issues.

What is the lesson to be learned? I suggest this: Beware of the use of weasel words, words with slippery meaning. The Judge said in his judgement that the applicant "challenged" the Authority’s decision. "Challenge". What did that mean? Was the applicant seeking a quashing order, a amendatory order or something else against the Housing Authority? What was that "something else"? There must be some legal basis for the order sought. If it can only be a stated in 27 pages, it meant the applicant had no case. The courtroom deals with real issues. It is not a place for lawyers to "challenge" each other.

Kong Yu Ming v Director of Social Welfare [2014] HKC 518

I come now to a very interesting case. It concerns an executive order made by the Chief Executive in Council dated 1st January 2004 whereby the period of eligibility for social assistance, previously one year, was raised to seven years.

Social service administered by the Social Welfare Department takes many different forms. The service concerned in this case was called the Comprehensive Social Security Assistance scheme (CSSA scheme) which was means-tested and provided subsistence living for those in need. It was part of an intricate and interlocking system of social welfare comprising, for instance, the non-means tested allowance for the elderly and the severely disabled, the Support for Self-reliance scheme, family and child services and so on.

As regards the residential qualification for social assistance, there was a time, way back in the past, when it was 10 years, then cut down to 5 years. That was well before the Handover. It was always aimed at curbing the mass influx of new migrants from the mainland. In 1971 it was conserved safe to reduce the qualification period to one year, and that was how matters stood when the case went before Andrew Cheung J in 2009.

In the course of the 30 years since the one-year rule was introduced, much had changed in Hong Kong. CSSA expenditure had hugely increased: from $2.4billion in 1993/94 to $9.4 billion in 1997/98 and rising, and, over the same period, its share of the overall social welfare budget had increased from 27% to 45%.

Moreover, with Hong Kong's ageing population, and many unskilled migrants coming into Hong Kong under the One Way Permit scheme- adding 55,000 new migrants to hong Kong every year - the long term sustainability of the social welfare system was under threat. This, very briefly, was the scenario against which Andrew Cheung J came to consider the case of the applicant for judicial review.

The applicant was a new migrant from the Mainland who got caught under the seven-year qualification rule. Her main ground for relief was that the executive order imposing the seven-year-rule was unconstitutional, in that it conflicted with her rights guaranteed under two provisions of the Basic Law: Articles 36 and 145. These stipulate as follows:

Article 36: Hong Kong resident shall have the right to social welfare in accordance with law.

Article 145: On the basis of the previous social welfare system, the Government of the HKSAR shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs.

As can be seen Article 36 is formulated in the broadest possible terms. No specific right is identified. All it means is that the HKSAR government must maintain a social welfare system. And Article 145 is worded flexibly- as one would expect it to be so in a constitutional instrument. The words "improvement of this system" must been seen in round terms: an increase in welfare benefits in one sector may mean decrease in another; such change would be consistent with Article 145 so long as it is aimed at improvement of the system overall. To devise a fresh policy to ensure the long term sustainability of the welfare system is uniquely the job of the executive branch of government, under the scrutiny of the Legislative Council which allocates the funds. Understandably, Andrew Cheung J therefore concluded as follows:"

"As I said, starting from the premise that Hong Kong has always had a residence requirement in its social welfare system which is recognised by the Basic law, increasing the length of residence is really a matter of degree, and it is a discretionary area of judgment that the government enjoys. Whilst there can be no doubt that the lengthening of the requirement from one year to seven is substantial if not drastic, i take the view that the looking at the matter in the round, that is not something that the courts are constitutionally entitled, and institutionally equipped, to interfere with. In short, it is really a matter of politics for government officials and politicians, not for the courts and judges. It is particularly so when the background is nothing other than social and economic conditions and needs."

Hence the application for judicial review was dismissed.

Essentially the Court of Appeal adopted the same approach as Andrew Cheung J and upheld his judgement.

Kong Yunming in the Court of Final Appeal ("CFA")

Astonishingly, the CFA, by a majority, did a conjuror's trick; it pulled a rabbit out of the hat. It considered that the rights guaranteed under Article 36 was not simply a general right to social welfare- as its wording clearly indicates- but a specific right to social welfare as it existed on 1 July 1997, when the residential requirement to social assistance was one-year's residence. This turned an innominate right into a specific right. Prof. Albert H Y Chen, with tongue in cheek, called it a "stroke of genius" in an article in the Hong Kong Law Journal.

With this creative interpretation of Article 36 as its platform, the CFA embarked upon a "proportionality analysis: to see if the CSSA scheme, as justified by the government, met the norms of such analysis. The CFA concluded that none of the matters relied on by the government, met the norms of such analysis. The CFA concluded that none of the matters relied on by the government was justified: The seven-year residential requirement operated as a restriction on the right guaranteed by Article 36; it did not pursue a legitimate aim it was not rationally connected with the achievement of that end; and the reason advanced by the government, that the purpose was curbing expenditure to ensure the sustainability of the social welfare system, was not made out. It therefore quashed the judgements of the lower courts, declaring that the seven-year requirement was unconstitutional, and restored the pre-existing residence requirement of one year.

Bokhary NPJ did not share in the performing the conjuror's trick. He adverted to the fact that when the Basic Law was promulgated in April 1990, the one-year residential requirement was already in place. Hence where Article 145 refers to the "the previous social welfare system" it clearly included the one-year residential qualification under the CSSA scheme, and the seven-year requirement was accordingly a new restriction.

When Article 145 refers to "the development and improvement of this system in the light of the economic conditional and social needs" Bokhary NPJ said that a "really serious economic downturn" might justify the new restriction; nothing less. And he added: "If Article 145 is less protective than that, it would be of little practical use". I am not sure that I would go as far as that but, essentially, Bokhary NPJ's approach is preferable by far to that of the majority, as it does no violence to the wording of the Basic Law.

As regards the CFA's order "restoring the pre-existing residence requirement of one year" this seems to me both unnecessary and unwise. It leaves the government with no flexibility and on its face, seems to have set the one-year rule in stone.

Conclusion

What conclusion can be drawn by having the Judge looking over the shoulder of the administrator, in the words of the Department of Justice manual? Does it help or hinder good governance? This answer, sadly, is this: Unless the courts are prepared to insist on proper discipline, lawyers will continue to abuse the system. The answer must necessarily be a negative one.

Henry Litton, a former Judge of the Court of Final Appeal, speaks at the University of Hong Kong's Faculty of Law on November 20, 2017. This is his full speech.